State v. Benton, 27

• Decision Date: 18 June 1969
• Docket Number: No. 27,27
• Citation: 167 S.E.2d 775,275 N.C. 378
• Parties: STATE of North Carolina v. May Benton BENTON.
• Court: North Carolina Supreme Court

Page 775

167 S.E.2d 775

275 N.C. 378

STATE of North Carolina v. May Benton BENTON.

No. 27.

Supreme Court of North Carolina.

June 18, 1969.

Atty. Gen. Robert Morgan and Deputy Atty. Gen. Ralph Moody, for the State.

Byrd, Byrd & Ervin, Morganton, for defendant appellant.

BOBBITT, Justice.

Fidelity to sound legal principles requires that the judgment be arrested on the ground the bill of indictment does not charge defendant with the crime for which she was tried, convicted and sentenced, or with any criminal offense.

The bill alleges explicitly and fully that Raymond Epley murdered Marshall Adam Benton on or about November 27, 1967. It alleges that defendant became an accessory before the fact to the murder of Marshall Adam Benton 'by counseling, procuring, or commanding Raymond Epley to commit a felony, to wit: will and murder Raymond Epley,' and that Raymond Epley murdered Marshall Adam Benton 'in confirmation of said counseling and procuring or commanding of the said Raymond Epley.'

The warrant on which defendant was arrested and the evidence at trial indicate clearly it was intended that defendant be charged as an accessory before the fact to the murder of Marshall Adam Benton by Raymond Epley By counseling, procuring, or commanding Raymond Epley to kill and murder Marshall Adam Benton. Unfortunately, the bill of indictment does not contain this Essential allegation. Decision must be based on what the bill of indictment in fact charges, not on what the draftsman or grand jury may have intended. Therefore, under the well-settled legal principles stated below, the bill of indictment was insufficient to vest the court with jurisdiction to try defendant.

A bill of indictment is insufficient to confer jurisdiction unless it charges all essential elements of a criminal offense. State v. Stokes, 274 N.C. 409, 163 S.E.2d 770, and cases cited; State v. Morgan, 226 N.C. 414, 38 S.E.2d 166, and cases cited. '(W)here no crime is charged in the warrant or bill of indictment upon which the defendant has been tried and convicted the judgment must be arrested.' State v. Morgan, supra, and cases cited. Accord: State v. Fowler, 266 N.C. 528, 146 S.E.2d 418.

'A charge in a bill of indictment must be complete in itself, and contain all of the material allegations which constitute the offense charged.' State v. Guffey, 265 N.C. 331, 333, 144 S.E.2d 14, 17. As held in Guffey, allegations in the warrant on which defendant was originally arrested cannot be used to supply a deficiency in the bill of indictment. Accord: 42 C.J.S. Indictments and Informations § 108, p. 990. Only what appears on the face of the record proper may be considered in determining whether a judgment should be arrested. State v. Gaston, 236 N.C. 499, 73 S.E.2d 311. Accord: State v. Stokes, supra. Evidence, which is not a part of the record proper, cannot supply a fatal defect or omission in a bill of indictment.

The bill of indictment under consideration is fatally defective. It does not charge defendant with the murder of Marshall Adam Benton. Nor does it charge that she counseled, procured or commanded Raymond Epley to murder Marshall Adam Benton. The verdict relates to the accusation in the bill of indictment. The allegations thereof being insufficient to charge a criminal offense, the judgment predicated on said indictment and verdict must be arrested.

The legal effect of arresting the judgment is to vacate the verdict and sentence of imprisonment. The State, if it is so advised, may proceed against the defendant upon a sufficient bill of indictment. State v. Fowler, supra.

The present case demonstrates the need for great care in the drafting of pleadings in criminal actions and for close scrutiny thereof prior to the arraignment and trial of the accused. '(I)t is impossible to overmagnify the necessity of observing the rules of pleading in criminal cases. The first rule of good pleading in criminal cases is that the indictment or other accusation must inform the court and the accused with certainty as to the exact crime the accused is alleged to have committed.' Ervin, J., in State v. Thorne, 238 N.C. 392, 78 S.E.2d 140.

Our reluctance to arrest judgment on account of the defect in the bill of indictment is assuaged by the realization that, even if the bill of indictment had alleged what the draftsman intended, defendant would be entitled to a new trial on account of error in the court's instructions to the jury. Since it is probable there will be a new trial on a proper bill of indictment, we deem it appropriate to call attention to a deficiency in the court's charge.

G.S. § 14--5 provides in part: 'If any person shall counsel, procure or command any other person to commit any felony, whether the same be a felony at common law or by virtue of any statute, the person so counseling, procuring or commanding shall be guilty of a felony, and may be indicted and convicted, either as an accessory before the fact to the principal felony, together with the principal felon, or after the conviction of the principal felon; or he may be indicted and convicted of a substantive felony, whether the principal felon shall or shall not have been previously convicted, or shall or shall not be amenable to justice, and may be punished in the same manner as any accessory before the fact to the same felony, if convicted as an accessory, may be punished. * * *'

'There are several elements that must concur in order to justify the conviction of one as an accessory before the fact: (1) That he advised and agreed, or urged the parties or in some way aided them, to commit the offense. (2) That he was not present when the offense was committed. (3) That the principal committed the crime.' 22 C.J.S. Criminal Law § 90, p. 269. This statement was quoted with approval by Moore, J., speaking for this Court, in State v. Bass, 255 N.C. 42, 51, 120 S.E.2d 580, 587, 87 A.L.R.2d 259.

Although under G.S. § 14--5 an accessory before the fact can be indicted and tried independently of the principal felon, 'the guilt of the principal must in all cases be alleged and proved.' 1 Wharton's Criminal Law and Procedure (Anderson) § 116, p. 251. 'In order to warrant the conviction of an accessory, the guilt of the principal...